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Spence v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, Pikeville

March 27, 2017

EUGENE SPENCE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Eugene Spence and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”). [Record Nos. 13, 16] Spence contends that the administrative law judge (“ALJ”) assigned to his case erred by denying his claims for disability income benefits (“DIB”) and supplemental security income (“SSI”). [Record No. 14');">14');">14');">14] He requests that the Court direct a finding of disability or, in the alternative, remand for further administrative proceedings. The Commissioner contends that the ALJ's decision is supported by substantial evidence and should be affirmed. For the reasons discussed below, the Court will grant the Commissioner's motion and deny the relief sought by Spence.

         I. Procedural History

         On May 4, 2010, Spence filed concurrent applications for a period of disability and DIB under Title II of the Social Security Act (“the Act”) and SSI under Title XVI of the Act. [Administrative Transcript, “Tr., ” 239, 245] Spence alleged that his disability began February 10, 2009. Id. The Social Security Administration (“SSA”) denied his applications initially and upon reconsideration. [Tr. 159-64] On September 14');">14');">14');">14, 2010, Spence, who was represented by attorney Eric Conn, requested a hearing before an ALJ. [Tr. 170] In an opinion dated November 8, 2010, ALJ David Daugherty concluded that the record supported a fully favorable decision that no hearing was necessary. [Tr. 14');">14');">14');">149-53]

         On May 18, 2015, Spence, along with hundreds of other social security beneficiaries, received notice that the SSA had reason to believe that fraud or similar fault was involved in his application and, as a result, his benefits were being suspended. [Tr. 39-44] Specifically, the SSA had reason to believe that fraud was involved in certain cases involving evidence submitted by Bradley Adkins, Ph.D., Srinivas Ammisetty, M.D., Frederic Huffnagle, M.D. and David P. Herr, D.O., dated between January 2007 and May 2011, which was submitted to the SSA by Eric Conn or others associated with Conn's law office. [Tr. 19]

         The Appeals Council remanded the case to a new ALJ to decide whether the claimant had been disabled as of November 8, 2010. ALJ L. Raquel Bailey Smith conducted a video hearing on November 10, 2015. [Tr. 20] ALJ Smith was required to disregard Dr. David Herr's October 8, 2010 opinion, but the claimant was permitted to submit additional evidence in support of his applications for benefits. See 42 U.S.C. §§ 405(u), 1383(e)(7). [Tr. 20] ALJ Smith denied benefits in a written decision on February 17, 2016. [Tr. 31] Spence sought review by the Appeals Council but that request was denied. [Tr. 1]. Accordingly, the claimant has exhausted his administrative remedies and this matter is ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

         II. Background

         Spence was 31 years-old at the time of the ALJ's decision and lived with his mother and father. [Tr. 81] He had a girlfriend and a young son. [Tr. 386, 388] Spence completed the eleventh grade and took special education classes while in school. [Tr. 84, 306] He worked full-time as an underground coal miner from 2003 through 2009. [Tr. 312] Spence testified that he was forced to stop working in February 2009 due to pain in his back, legs, and arm. [Tr. 74-75] These symptoms began after he was involved in a motor vehicle accident in January 2008, in which the car he was driving was hit by a coal truck. [Tr. 391]

         Spence reported having been treated by Dr. Hoover for these problems once a month from 2008 through 2010. [Tr. 76] Dr. Hoover prescribed Lortab and Valium, but these medications only “took the edge off.” [Tr. 75] Spence advised ALJ Smith during the administrative hearing that Dr. Hoover “got shut down, ” and that his treatment records were no longer available. [Tr. 77]

         Spence testified that he does not sleep well at night and that he takes three or four 30 to 45-minute naps daily. [Tr. 78] He also reported that walking worsened his pain and he was only able to walk about 35 or 40 steps without sitting down and resting for several minutes. [Tr. 81-82] Spence stated that he can sit in a chair for two or three minutes before changing positions. [Tr. 83] And he reported being able to lift only three or four pounds. [Tr. 83-84] Spence further testified that he did not read well and was unable to complete a job application. [Tr. 84]

         David Winkle, M.D., performed a consultative examination in June 2010. [Tr. 405] Spence complained of low back and left leg pain, difficulty walking, left arm pain and numbness, nervousness, difficulty sleeping, and severe headaches. Id. Dr. Winkle noted that Spence appeared healthy and that his mood and affect were appropriate. [Tr. 406] He had slightly diminished sensation over his left hand, but his neurologic exam was otherwise normal. Id. Spence was able to squat, tandem walk, and could walk on his heels and toes. Id.

         While Winkle noted some tenderness of the left shoulder and lumbar area, there was no muscle atrophy. Further, the claimant had no pain with straight leg raising. Id. He also had normal range of motion.

         Dr. Winkle evaluated several x-rays as part of Spence's examination. [Tr. 407] The bony structure of Spence's lumbar spine was normal and the disk spaces were preserved. Id. Dr. Winkle believed muscle spasm was probable. Id. The claimant's left femur and forearm were also x-rayed, with normal results. Id. Winkle concluded that Spence had normal strength and dexterity in the upper and lower extremities, but that his low back problems would limit his ability to perform heavy lifting, as well as bending, twisting, and stooping. Id. Winkle added that prolonged walking may be difficult, and that Spence “has some difficulty with use of his left arm.” [Tr. 406-07]

         Timothy Gregg, M.D., reviewed Spence's file the following month. [Tr. 130-132] Dr. Gregg opined that Spence could occasionally lift and/or carry 50 pounds and frequently lift and/or carry 25 pounds. [Tr. 130] Further, he believed that Spence could walk, stand, or sit for about six hours in an eight-hour workday. Id. He opined that Spence had no limitations when it came to pushing, pulling, posture, vision, communication, manipulation, or the environment. [Tr. 130-31] Gregg acknowledged that his findings were less restrictive than those of Dr. Winkle, but believed that Winkle only provided a “snapshot of [Spence's] functioning” and, therefore, did not accurately represent the severity of his limitations. [Tr. 131]

         William Rigby, Ph.D., performed a consultative examination concerning the claimant's mental abilities in May 2010. [Tr. 385] Spence advised Dr. Rigby that he had experienced problems with anxiety for two years. Dr. Rigby found that Spence's thought processes were free of psychotic symptoms, but were somewhat concrete in cognitive style. [Tr. 386] Further, Spence had intact long and short-term memory. Dr. Rigby diagnosed Spence with a depressive disorder and assigned him a Global Assessment of Functioning (“GAF”) score of 60, which indicates moderate ...


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